Democrats Have Failed to Prove Their Case Against Trump

The House Judiciary Committee has published articles of impeachment against President Donald  Trump. Though potentially damning, the particular charges—abuse of power in connection with Ukraine and the 2020 election, and obstruction of Congress—face an unusual evidentiary problem compared with impeachments past. Because there is a plausible legitimate governmental justification for each of the allegations, the impeachers must establish not only that the alleged conduct occurred, but that the president acted for personal gain.  

For most Democrats, Trump’s corrupt intent is so obvious that the proof is everywhere. For most Republicans, however, Trump’s corrupt intent remains the proposition to be proved. (I worked at the White House as the Council on Environmental Quality’s associate director for regulatory reform from 2017 to 2019.) That doesn’t bode well for the impeachers’ hopes of removing the president, because most of the evidence we’re likely to see is already contained in the report of the House Intelligence Committee, which was given the role of fact-finder under the House impeachment resolution. The Judiciary Committee ultimately backed off the theory that Trump had committed bribery, presumably because the evidence of a quid pro quo proved so thin, and abandoned the possible obstruction-of-justice charges suggested in Robert Mueller’s Report on Russian interference. The impeachers have failed to convince anyone who wasn’t already in their camp at the outset.

An early warning of the challenge that would face the impeachers was contained in the second volume of Mueller’s report. There, Mueller notes that the obstruction-of-justice statute requires corrupt intent as an element of the crime, along with obstructive acts in a relevant investigation or proceeding. He notes that corrupt intent can often be inferred from the alleged conduct itself, but where there is a plausible legitimate